People v. Cruz

Opinion

FILED \ l l

OF QQURT CLERK %F COURT

2U2M auf; 29 PH lg! SUPER»G*R COURT GF GUAM IN THE SUPERIOR COURT COURT OF OF GUAM GUAM

PEOPLE OF GUAM, GUAM, CRIMINAL CRIMINAL CASE CASE NO. CF0632-23

Plaintiff, DECISION DECISION AND ORDER RE vs. STATEMENT OF OBJECTION PETER RAY CRUZ, DOB: DOB:11/12/1991 11/12/1991 Defendant.

The Court reviews the Objection Objection filed filed by by the the People People of ofGuam, Guam, represented by the represented by theOffice Office

of of the the Attorney General General of ofGuam (OAG), totothe Guam (OAG), theassignment assignment of ofthis this case case to the Honorable Honorable Alberto Alberto

E. Tolentino. The TheCourt Courtfinds finds that that the OAG OAG has has waived waived its Objection Objection and failed failed to to file the

Objection Objection at the the earliest earliestpracticable practicableopportunity. opportunity.Therefore, Therefore,the theCourt CourtOVERRULES OVERRULES the

Objection Objection and and returns this case case to to Judge JudgeTolentino. Tolentino.

I. FACTUAL AND PROCEDURAL PROCEDURAL BACKGROUND BACKGROUND

1. 1. This Thismatter matterinitiated initiatedwith withaaMagistrate's Magistrate'sComplaint Complaintagainst against Defendant Defendant on on October 5, 5,

2023.

2. Judge JudgeTolentino Tolentinowas wasassigned assignedto tothis this case case on on October October 12, 12, 2023. 2023.

3. Nine Ninemonths months later, on July 19, 19, 2024, the OAG OAG lodged lodged aa Statement Statement of Objection Objection and and aa

Motion Motion to to Disqualify Disqualify Judge Tolentino. The Judge Tolentino. The Statement Statement alleges:

a. As Asa aMagistrate MagistrateJudge Judgeand Judge, 1 Judge and aa Judge,l Tolentino disqualified himself Judge Tolentino

11 Judge JudgeTolentino Tolentino was a Magistrate Judge Judge from from 2009 2009 to 2017 2017 and a Superior Court Judge since September 2021. 2021. Answer Answer1i ,i 4 (July 29, 29, 2024 2024). ).

OR~G!NAL URKQENAL | \ CF0632-23 DECISION AND ORDER RE STATEMENT OF OBJECTION STATEMENT OF OBJECTION Page 2 Page

cases involving from cases involving Attorney General Moylan General Moylan while Attorney General

Moylan Moylan was was an an attorney in practice. 2 in private practice.2

b. Judge To1entino has JudgeTolentino disqualified in other cases has been deemed disqualified casesinvolving involving the

OAG. Id., Id.; People v. Aguon, CM0145-21 (Dec. and Order Aguon, CM0145-21 Order(April (April 5, 2024)).

c. San SanAgustin Agustin11 Super Ct., v. Super. Cr., 2024 Guam 2, issued on July July 28, 2024, required the

Superior Court of Guam Clerk of Court Court to refrain refrain from from assigning assigning cases cases to

Judge Tolentino once he has Judge Tolentino has been been disqualified. disqualified.

4. Judge JudgeTolentino Tolentinoanswered answered the the objection, objection, denied denied there there were were grounds grounds to disqualify him,

and asserted assertedthat that the the Objection Obi sectionwas wasuntimely. untimely. He He also also stated statedthat that in in December December 2022,

he reached an an agreement agreementwith withAttorney Attorney General Moylan Moylanthat that his his recusal was no

longer required. required.

5. This Thiscourt courtreviewed reviewedthe theObjection Objectionand andAnswer Answerand and permitted permitted further briefing, briefing,

particularly on the the issue issue of of timeliness.

6. The TheOAG OAGfiled a Response filed a ResponsetotoJudge JudgeTolentino's Tolentino'sAnswer, Answer,asserting assertingthat that Judge Judge

Tolentino is disqualified disqualified "per "per sh" se" and and that its Objection was timely.

II. LAW AND DISCUSSION

This Court first addresses addresseswhether whetherthe theOAG OAGhas hasfiled filedaatimely timelyobjection. objection. A party's

objection objection "shall "shallbe bepresented presented at at the the earliest earliest practicable practicable opportunity opportunity after after his his or orher her appearance appearance

and discovery discovery of the facts constituting constituting the the... ... Judge's Judge's disqualification, disqualification, and and in any any event before

the commencement commencement of of the the hearing hearing of of any issue issue of of fact in in the action or proceeding before before such such

Justiceor Justice orJudge." Judge." 77GCA GCA§§ 6107. 6107.

z2 This This fact is discussed discussed inin a June June 4, 4, 2024 2024 Decision Decision and Order rendered rendered in in People v. Taitingfong, CV0024-24, CV0024-24, which whichisisattached attachedtotothe theOAG's OAG'sStatement StatementofofObj section. Objection.

OR!GiNAL I \ CF0632-23 DECISION AND ORDER RE STATEMENT STATEMENT OF OF OBJECTION OBJECTION Page 33 Page

The OAG did not satisfy section 6107 when it waited nine months to lodge its objection (\ to Judge Tolentino. OAG being Tolentino. Despite the OAG being aware aware of of the existence existence of of the conflict since at least

January 2023, it did not obi act to object to Judge Judge Tolentino Tolentino when when he he was was assigned to this case on October

12, 2023. ItIt did did not not obi act shortly after Judge Tolentino object Tolentino issued a Criminal Trial Scheduling

Order on December 22, 2023, which set the trial for July 24, 2024. ItItdid didnot notobi act at the July 2, object

2024 Pretrial Conference.

Instead, the OAG waited nine months after Judge Tolentino's assignment to this case to

lodge its Statement of Objection. Objection. Because Because of of this this delay, delay, the OAG OAG has failed to show that it

object[ed] "at the earliest practicable opportunity after his or her appearance and discovery of of the

facts constituting the facts constituting the ground ground of of the the ... ... Judge's Judge's disqualification." disqualification." 77 GCA GCA §§ 6107. 6107. The The Court Court

Ends objection. 3 finds that the failure to object sooner amounts to an untimely objection.3

The OAG claims that its Objection is timely under Van Dox v.v Super. Van Dox Super Ct. (Alcorn), (Alcorn), 2008

Guam 7. In Inthat that case, case, the the objecting objecting party party waited waited four four months months after after the judge's assignment to file

an objection, and the judge judge had had not not rendered rendered any any rulings rulings during during that that period. ~ 47. period. Id. 1i 47. The court

directed that section 6107's 6l07's time time limitation limitationshould should be be construed construed liberally. liberally. It It further determined

that "a statement of objection is normally timely timely ififitit is is submitted submitted prior to any hearing before the

challenged judge in the matter." Id. W 46-47. Id.~~ 46-47. The The court court noted the principle that a party should

not be allowed to gamble on a favorable decision. Id. ~ Id. 1146.

The OAG, however, fails to address further subsequent opinions by the Guam Supreme

Court on the issue of timeliness. timeliness. Following Following Van Van Dox, the Guam Supreme Court adopted the

10 ~ "silence-as-waiver" rule. See San Union v. Arnold, 2017 Guam 101127. This rule holds that

33 The The People People claim that San Agustin Agustin in v. Super: Super. Cr., Ct., 2024 Guam 2 furnished "additional" grounds to support its Objection. section.However, However, section section 6107 6107 does does not not indicate indicate that the timeframe to object restarts when new grounds are discovered.

E ORIGINAL I

1 CF0632-23 DECISION DECISION AND ORDER ORDER RE STATEMENT STA OF OBJECTION Page4 Page

when a party with knowledge of of a judge's conflict fails judge's conflict fails to object to to the's judge judge continued hearing

of the party's case, such silence amounts to a waiver of of any potential waiver of potential disqualification.

In People In People v. Win, 2020 Guam Wia, 2020 Guam 17, 17, and and Moylan Moylan11 Ct., WRP23-001, the Guam Super Cr., v. Super.

Supreme Court Supreme Court extended the silence-as-waiver rule to render an objection as waived when based

on information previously known to the parties through separate separate litigation. Wia, litigation. For example, in Win,

the defendant's counsel, Public Defender Defender Service Service Corporation Corporation (PDSC), (PDSC), had had raised raised the issue of of

the judge's judge's disqualification in other other cases cases in in which which PDSC PDSC represented represented other other clients. clients. 2020 Guam

17,r1]27. 17 as to the defendant in Win, 27. However, as PDSC failed Wia, PDSC failed to to object object until the appeal of of the

The Guam defendant's conviction. The Guam Supreme Supreme Court Court determined determined that that the the defendant was aware of of

the conflict through his counsel's involvement in those other involvement in other cases, and the silence-as-waiver

objection rule rendered his obi action waived waived and untimely.

outcome. In Moylan reaches a similar outcome. In that that case, Richard Moylan (Attorney General

Moylan's father) Moylan's father) initiated a civil property dispute dispute involving a lot in which which his mother held an

interest; meanwhile, he was also an interested interest, interested party party in in his his mother's mother's guardianship guardianship case. case. Richard

Moylan Moylan knew knew for for over over aa year year that that the same trial judge presided over the civil case and the

guardianship case. case. After After he received received an an adverse adverse decision decision in in the civil case, he challenged the

judge's competency, competency, claiming claiming that that the the trial trial judge had aa fiduciary judge had fiduciary relationship to his mother, and

therefore could not be be impartial impartial when when it it came came to to the the civil civil matter. matter. Because Richard Moylan took

no action for a full full year relative relative to to aa potential potential conflict, conflict, the the Guam Guam Supreme Supreme Court deemed deemed the

challenge to the judge's judge's competency to serve as having been waived and untimely under the

silence-as-waiver rule. rule. WRP23-001 (Order Denying Writ of Prohibition Prohibition (June (June 12, 12,2023)). 202)).

The silence-as-waiver rule again applies applies here. here. Judge Judge Tolentino Tolentino was already on the bench

and handling a criminal case docket at the time Attorney General Moylan took office in January

"=::r

\ l l g CF0632-23 DECISION AND ORDER RE STATEMENT STATEMENT OF OF OBJECTION OBJECTION Page 5

2023. The 2023. The OAG OAG fails fails to to challenge challenge Judge Judge Tolentino's Tolentino's statement statement that he and Attorney General

Moylan reached an understanding in Moylan in December December 2022 that Judge Tolentino's recusal over cases

involving the OAG was unnecessary, unnecessary; in in other other words, it appears that Attorney Attorney General Moylan

waived such a conflict on behalf behalf of of the OAG and and the People of of Guam at the start of his term.

The OAG also fails to show that they objected to Judge Tolentino presiding over any case for

over a year after Attorney Attorney General Moylan took office.

In fact, the earliest known record of an objection objection to Judge Tolentino based on his

relationship to Attorney General Moylan is discussed in the Decision and Order in Aguon, Aguon,

CM0145-21. CM0145-21. In In that case, the court court discussed discussed an an argument argumentadvanced advancedby bya adefendant-not defendant-not by the

OAG-that OAG-thathe therelationship relationshipbetween betweenAttorney AttorneyGeneral GeneralMoylan Moylanand andJudge JudgeTolentino Tolentino provided provided an

appearance of improper conduct. conduct. The court noted that the OAG took no position on this

argument. Id. Id. at at 5. 5. In Inother otherwords, words, more more than than aa year year after after Attorney General Moylan Moylan took office,

the OAG saw no reason reason to to obi act to object to Judge Judge Tolentino, Tolentino, even as as other parties did.

Also, in Taitingfong, 4 Taitingfong, CF0024-24, CF0024-24, ititwas wasaadefendant defendant4-and not the -and not theOAG-who OAG-who raised raised a

potential conflict. When When given given an an opportunity opportunity in in May May 2024 2024 to to weigh weigh in in on on the the conflict, the OAG

took a passive role. role. Id. Id. (Dec. (Dec. and and Order Order at at 44 (June (June 4, 4, 2024)).

and Taitingfong Aguon and Taitingfong are just just two cases demonstrating the cases demonstrating the OAG's OAG's knowledge knowledge and

deliberate choice to waive an objection to Judge Judge Tolentino. Tolentino. These two cases are joined by the

hundreds of criminal cases assigned to Judge Tolentino since Attorney Attorney General General Moylan took

office in which the OAG took no action despite despite being being aware aware of of the the conflict. conflict. Even Even under the most

44 Judge Judge Tolentino Tolentino's Answer in Taitingfong did not question the timeliness or waiver of 's Answer of the defendant's objection. TheThe defendant defendant there there was was represented represented by private counsel.

I l J w,

\ , J EaB ws > l CF0632-23 DECISION AND AND ORDER ORDER RE STATEMENT STATEMENT OF OBJECTION Page 6

liberal construction of section 6107, 6107, this this Court Court cannot cannot reach reach any any conclusion but that the the OAG's OAG's

waiver of longstanding silence has amounted to a waiver of its objection.

Wia instructs Finally, Win instructs that that whether whether aa conflict conflict is is egregious egregious enough enough to preclude the

application of the silence-as-waiver rule rule must be be determined on a case-by-case basis. basis. To

of a conflict's egregiousness, the court focused determine the level of focused on how how much notice the

of the conflict. 2020 objecting party had of 2020 Guam Guam17 ~ 30. Just 171130. Just as as the court court in in Win Wia determined that

of egregiousness of failure to object for over a year decreased the level of of the conflict, the OAG

here has also waited for over a year to assert any objection based on Judge Tolentino's conflict in

the hundreds of of cases that came came before this this one. For that one. For that reason, reason, the silence-as-waiver silence-as-waiver rule, as

applied to the the OAG's objections, overcomes Judge Tolentino's conflict.

HI. III. CONCLUSION

The Court determines that the OAG filed an untimely objection and has also waived the

conflict between Judge Tolentino Tolentino and and Attorney AttorneyGeneral GeneralMoylan. Moylan. The Court OVERRULES the

Objection and returns this case to Judge Tolentino.

S0 SO ORDERED this 29 August August 2024.

HON. ;16 HON.ELEM. EL E M. IRIARTE Judge, Superior Court of Guam

1 » / CF0632-23 DECISION AND ORDER RE STATEMENT OF OBJECTION Page6

liberal construction of section 6107, this Court cannot reach any conclusion but that the OAG's

longstanding silence has amounted to a waiver of its objection.

Finally, Wia instructs that whether a conflict is egregious enough to preclude the

application of the silence-as-waiver rule must be determined on a case-by-case basis. To

determine the level of a conflict's egregiousness, the court focused on how much notice the

objecting party had of the conflict. 2020 Guam 11, 30. Just as the court in Wia determined that

failure to object for over a year decreased the level of egregiousness of the conflict, the OAG

here has also waited for over a year to assert any objection based on Judge Tolentino's conflict in

the hundreds of cases that came before this one. For that reason, the silence-as-waiver rule, as

applied to the OAG's objections, overcomes Judge Tolentino's conflict.

III. CONCLUSION

The Court determines that the OAG filed an untimely objection and has also waived the

conflict between Judge Tolentino and Attorney General Moylan. The Court OVERRULES the

SO ORDERED this 29 August 2024.

HON.ELEM. IRIARTE Judge, Superior Court of Guam

SERVICE VIA"E•"At'- 1etknowledae tha, an electrohlc copyoltheofilinl! - e-mail""'°' A', /tPO